[UPDATE March 6: The court on Monday vacated the appeals court decision in this case and sent it back for further consideration in light of the Trump administration’s decision to withdraw Obama-era guidance.]
School groups, as well as several former U.S. secretaries of education, are lining up on opposite sides of the major U.S. Supreme Court case on transgender student rights.
Multiple education groups filed friend-of-the-court briefs last week in Gloucester County School Board v. G.G. (Case No. 16-273) in support of Gavin Grimm, the female-born transgender high school student who is seeking, in line with his gender identity, the right to use the boys’ restroom at his Virginia high school. So did Arne Duncan and John King Jr., President Barack Obama’s two education secretaries.
The briefs contrast with friend-of-the-court briefs filed in January on the side of the Gloucester County, Va., school district, including a joint brief from the National School Boards Association and AASA, the School Superintendents Association, and one from William J. Bennett, who served as U.S. education secretary under President Ronald Reagan and also has filed a brief on the school board’s side.
The Supreme Court is scheduled to hear arguments March 28—if the case goes forward as scheduled. After President Donald Trump’s administration last month withdrew Obama-era guidance on transgender rights, the court is weighing advice from both parties that it should proceed with the case and decide the underlying question of whether Title IX, the federal law against sex discrimination in education, covers gender identity. (While the school board agreed the justices should decide the case, it did ask for a delay so the Trump administration could express its views.)
A decision by the court on how it will proceed could come as soon as Monday.
Meanwhile, here is a look at some of the dozens of briefs filed in case.
In Support of Gloucester County School Board
These briefs were filed by Jan. 10, so they don’t take account of the withdrawal of the Obama guidance.
The brief filed for former Bennett argues that the Obama administration’s interpretation of Title IX and its regulation was “directly contrary to the very understanding of sex that led Congress to target sex discrimination to begin with.”
And the Bennett brief says the Obama interpretation was inconsistent with the reasons schools separate boys and girls in school restrooms, locker rooms, and showers.
“As experience has already unfortunately demonstrated,” the brief states, “allowing a student to access either the girls’ or boys’ restroom, shower, or locker room based on nothing more than his or her self-reported internal sense of gender facilitates those nontransgender students who wish to access the opposite-sex facility not because of any genuine gender dysphoria but rather out of a desire for voyeurism or, worse, abuse.”
The NSBA and AASA brief makes a measured argument that the then-in-force Obama guidance should not have received deference from the courts and that the U.S. Department of Education should have followed a more formal regulatory process with input from the nation’s 14,000 school boards.
“Individual school boards have been addressing the issues surrounding the accommodation of transgender students for more than a decade,” the brief says. “Based on applicable legal standards and their experience with the local needs, views, and values of their communities and students, different local school boards have made different decisions.”
In Support of Gavin Grimm
These briefs were filed by March 2, and were able to tailor their arguments to the Trump administration’s withdrawal of the Obama guidance.
The National Education Association, the American Federation of Teachers, the National Association of Secondary School Principals, and the School Social Work Association of America filed a brief that argues that the high court should hold that Title IX prohibits transgender discrimination.
“Transgender people cannot be wished away. Being transgender is not a fad. It is innate; not a choice,” the brief states. “School-based discrimination harms transgender students by stigmatizing them and denying them equal education opportunities.”
Joining another brief on Grimm’s side are the National PTA; the Gay, Lesbian, and Straight Education Network; the American School Counselor Association; the National Association of School Psychologists; and the National Association of Independent Schools.
“Transgender students suffer particular harms when they attend schools that force them to use separate restrooms or to use restrooms that do not align with their gender identity,” the brief says. “These harms include stigmatization, loss of educational experiences, and increased risk of harassment and assault.”
The brief on behalf of former secretaries Duncan and King was also signed by several former federal civil rights officials, including Catherine E. Lhamon, who was the head of the Education Department’s office for civil rights last year when she issued, with a Justice Department official, the “Dear Colleague” guidance letter on transgender rights that was withdrawn by the Trump administration.
Their brief discusses what it terms an “extensive process of agency review and factual development by multiple agencies and departments” that to the Obama-era guidance documents, both the 2016 “Dear Colleague” letter and a more informal 2015 letter at issue in the Gloucester County case.
Referring to the Trump administration, the brief says “the new administration was ... misinformed, when it advised [in those letters] that neither document contained ‘extensive legal analysis or explain[ed] how the position is consistent with the express language of Title IX, nor did [either document] undergo any formal public process.’”
“In fact, the Department of Education’s analysis included careful consideration of the text of Title IX, related precedents, and public administrative proceedings,” the brief says.
There are many other friend-of-the-court briefs filed in the case on both sides, from religious groups, public interest organizations, school districts, scholars, health experts, and corporations. There are also competing briefs from members of Congress, 80 on the side of the school board, 196 in support of Grimm.
But the only vote that matters, if the case proceeds, is the one that would be taken after arguments by the current, eight-member Supreme Court.
A version of this news article first appeared in The School Law Blog.